CIV/APN/53/05
IN THE HIGH COURT OF LESOTHO
In the matter between:
MASUPHAAPI Applicant
AND
LIMAKATSO (TSETSE) API 1st Respondent
M.K.M FUNERAL SERVICE 2nd Respondent
COMMANDER OF LESOTHO DEFENCE FORCE 3rd Respondent
ATTORNEY GENERAL 4th Respondent
JUDMENT
Delivered by the Hon. Mr. Justice G. N. Mofolo On the 10th day of March. 2005
This is a case in which the applicant approached this court on an urgent basis to have him declared as lawful heir of the deceased Tsotang Robert Api; for the applicant to make arrangements, with the family, for the place and date of deceased's burial; 3rd respondent to release benefits due to deceased to the applicant according to custom; 1st and 2nd respondent to be restrained from releasing the body other than to the applicant. The application was opposed and when it came before me for argument counsel agreed that all that has to be decided was deceased's burial place in view of
the fact that the deceased had left instructions that he be buried at his birth place at Ramabanta's. Counsel gave the court an unmistakable impression that by virtue of applicant being heir to the deceased he was, in law, entitled to bury the deceased in consultation with members of the family.
Several witnesses have deposed to the fact that it was deceased's wish that he be buried, on his death, at Thetsane's, Maseru. Mr. Phoofolo for the applicant has, however, submitted that it was strange that the deceased had intimated to some people of his wish to be buried at Thetsane's when he hadn't intimated this to his son the applicant with whom, on the face of it, relations were cordial. Mr. Phoofolo also attacked communications by deceased to depositories of affidavits as highly suspect material deserving to be tested for without viva voce evidence the court would not decide on the credibility of the deponents. The application for conversion of the application to hear viva voce evidence was however refused. The reason for the refusal of the application was based primarily on the fact that according to counsel, the deceased has been lying in the mortuary for now two months and the court was loath to prolong the period by calling for viva voce evidence.
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It was applicant's case that deceased was married to his mother, a divorce launched but not completed and in the meantime deceased had married the 1st respondent. It turned out that the deceased and applicant's mother were divorced and on divorce deceased had married 1st respondent with whom he lived at Makoanyane barracks where deceased worked. It was 1st respondent's case that although they lived at Makoanyane barracks they had a home at Thetsane's where deceased wished to be buried. Before me, Mr. Phoofolo made mincemeat of 1st respondent's case saying that yes there were flats at Thetsane's but these were hired flats and 1st respondent could not claim this as her house.
It was the court's view that if 1st respondent lived in hired flats at Thetsane's this could not be deemed as home; on the contrary if 1st respondent or for that matter she had a home at Thetsane's, irrespective of whether it was a hovel, this counted as a home for it demonstrates deceased's intention as to his residence. Talking about residence, the fact that deceased lived at Makoanyane barracks does not in the least denote his residence for purposes of burial for Makoanyane barracks is temporary residence dependent on deceased's terms of service. The court along with applicant's and 1st respondent's counsel had gone to Thetsane on an
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inspection-in-loco and there the court had found a three-roomed house with an extended foundation intended to augment the existing building. In the existing house lived 1st respondent's (deceased's) herdboy and some other tenant though not on rental basis. There was also a structure deemed a kraal which housed 1st respondent's (deceased's) animals being 3 cows. In the yard a toilet was also undergoing construction. It was agreed that the three-roomed house, the extended foundation thereon, animal structure and yard were the property of the deceased.
When the court returned to court results of the inspection-in-loco were read and admitted by counsel with Mr. Phoofolo deciding that having regard to the fact that deceased had a permanent home at Thetsane's it shows that his intention was to reside at Thetsane's and it was only fair that he be buried at his home.
The court had consequently dismissed the application and ordered that the deceased be buried at Thetsane's by the applicant in consultation
with member of the family including the 1st respondent. As for costs, on account of applicant and 1st respondent having both succeeded and failed and the
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contest being a family matter, it was ordered that there be no order as to costs.
I am to make it patently clear that what this court has decided in this application is solely and exclusively the burial place of the deceased.
G.N. MOFOLO
JUDGE
For the Applicant: Mr. Phoofolo
For the 1st Respondent: Mr. Phafane
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